Bailey v UK Coal Mining Ltd., Court of Appeal - Supreme Court Cost Office, May 28, 2009, [2009] EWHC 90139 (Costs)

Resolution Date:May 28, 2009
Issuing Organization:Supreme Court Cost Office
Actores:Bailey v UK Coal Mining Ltd.

Neutral Citation Number: [2009] EWHC 90139 (Costs)

Appeal Ref: A5/09

Claim No: 5 Ch 03431



Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 28 May 2009

Before :


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Between :

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Mr Benjamin Williams (instructed by Woods Solicitors) for the Claimant/Respondent

Mr Mark Friston (instructed by Halliwells LLP) for the Defendant/Appellant

Hearing date: 7 May 2009

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Senior Costs Judge:


  1. This is an appeal from the decision of District Judge Wallace on 22 December 2008, who found that there had been no breach of Regulation 4(2)(d) of the Conditional Fee Agreements Regulations 2000 in relation to the Claimant's CFA with his solicitors. Regulation 4, so far as relevant, reads:

    ``4(1) Before a conditional fee agreement is made the legal representative must -

    (a) inform the client about the following matters, and

    (b) if the client requires any further explanation, advice or other information about any of those matters, provide such further explanation, advice or other information about them as the client may reasonably require.

  2. Those matters are:


    (d) whether other methods of financing those costs are available and if so how they apply to the client and the proceedings in question ...''

  3. ``Those costs'' are the costs of the legal representative payable in accordance with the CFA, and the client's risk of incurring liability for costs in respect of the proceedings to which the agreement relates.


  4. The Claimant was employed by the Defendant between 1995 and 2003. He claimed compensation for vibration white finger, which he alleged was brought about by his use of vibrating tools in the course of his employment.

  5. UK Coal Mining Ltd was a mine operator, and was a participant in a non statutory compensation scheme involving BERR and other co-defendants. BERR had set up the compensation scheme to deal with vibration white finger claims, similar to the scheme set up to deal with respiratory disease claims. Although UK Coal Mining Ltd and other co-defendants were not part of the scheme, they acted as if they were. Mitting J, who oversees the scheme, ordered that there should be a cut-off date for new applicants in October 2002. In October 2002 the Claimant approached his union to see if he could make a claim under the scheme. The Claimant explained the position in cross examination before the Recorder at trial:

    ``... I did try to put in a claim through the union at Maltby, but they told me I had missed the knock off date, so I - there was a date after a certain time you could no longer put a claim in. I was told I had missed that date so that is why I brought it privately.''

  6. The ``knock-off date'' to which the Claimant referred was said by Mr Williams to be in fact the cut-off date imposed by Mitting J, although Mr Friston did not accept that this was necessarily the case.

  7. So far as I am aware there is no evidence as to exactly what passed between the Claimant and his union. Having left his employment the Claimant took advice from a claims handling agency called The Miners Welfare and Compensation Agency (``MWCA''). It appears that MWCA had difficulty in placing the Claimant's claim with any of its panel solicitors, but again there is no evidence as to the nature of those difficulties. The Claimant's claim was eventually accepted by his present solicitors in 2004, more than two years after he had initially made enquiries of his union.

  8. It is common ground that the solicitors made no enquiries of the union as to the availability of funding. Mr Friston for the Defendant/Appellant relies on the solicitor's attendance note dated 19 November 2004 to support his case. He refers to the following passage:

    ``He [ie, the Claimant] ... appreciates that there is a scheme [ie, the BERR scheme] which finished in October 2002. Indeed he consulted NUM in that month and was told that they could not help.''

  9. Mr Friston points out that the District Judge made a finding of fact based on the note:

    ``That seems to suggest that the solicitor accepted that because the scheme had finished, the NUM would not be prepared to assist.''

  10. In due course the Claimant succeeded in his claim and became entitled to his costs. The parties were unable to agree the costs, and the matter thus came before the District Judge. The District Judge gave judgment in two parts, which Mr Friston refers to as the first judgment and the second judgment. Mr Friston argues that the findings of the District Judge in the first judgment were correct:

    ``12. It seems to me that a reasonably competent solicitor ought to have realised that just because there was a statutory scheme which had ended, this did not preclude common law claims and that there may have been other methods of financing and costs other than the CFA and it seems to me it would have been reasonable for that solicitor on behalf of Mr Bailey, the Claimant, to make those enquiries of the union. It may have caused a slight delay whilst an application for legal assistance was put forward but he has certainly to my mind not ascertained whether that method of funding would have been available to the client in these proceedings and it seems to me ... that there is a genuine issue here as to whether the Claimant solicitors properly considered whether other methods of financing were advanced ...''

  11. There was then an adjournment to enable Stephen Woods, the Claimant's solicitor, to prepare a witness statement dealing with the enquiries he had made in relation to Regulation 4(2)(d).

  12. The witness statement states that Mr Woods met the Claimant for 2 hours 30 minutes and discussed his work history, development of his symptoms, the likely progression of the claim and funding methods, and the requirement to attend for a medical. The Claimant told him that he had contacted the union and that they had refused to assist him in bringing a claim. Mr Woods went on to explain why he did not take further steps to contact the union:

    ``8. ... I did not do so because they had refused funding. He had contacted them in time to take part in the scheme claim and I did not believe that the scheme claim was relevant to him. I had presumed that the union had refused him assistance on the merits of the case and those would have included issues of limitation. My view of the case was, it was not straightforward which is why Miner's Welfare had also not been able to place it.

  13. My opinion of the Claimant was based on the following. I had gone to see him as a response to a robust phone call he had made to the office about his claim. Miner's Welfare had told me that he had previous claims through the union. I assessed that he had some knowledge of the litigation process - I had no reason to doubt what he had told me.

  14. I solely relied in determining the steps that I would take on those matters told to me by the Claimant rather than any third party.''

  15. In his second judgment the District Judge dealt with the matter in this way:

    ``11. The issue is what other steps, if any, should the Solicitors have taken at that stage [ie, 2004] Mr Bailey was self employed. He had made previous claims against UK Coal, or at least one previous claim against UK Coal which had been sponsored by the union and so he knew that union funding was available for claims such as this. He had seen the union in October 2002 and had been refused funding for this claim. Is it incumbent upon the Claimant solicitors to go further than they did and accept what the Claimant told them? The Regulation is to provide information to the client about what other matters of financing those costs are available and if so how they apply to him and the proceedings in question. What the Regulations don't say is whether other methods of financing those costs are, or might be available, though it is not an analogous situation to, for example, the days when legal aid was available, when you might be eligible for legal aid, ``but before I take you on privately I owe a professional duty to you to ascertain whether that legal aid is available''.''

  16. The District Judge continued:

    ``12. Here we have a relatively sophisticated client who knew the nature of his claim, knew that it was common law, had made a similar claim with union sponsorship and had contacted the union timeously or reasonably timeously to ask for assistance in this claim and had been refused.''

  17. Mr Friston argues on appeal that the District Judge made errors in law under six heads, and also made an erroneous finding of fact.

  18. Mr Williams for his part, argues that there is no basis on which the Appeal Court ought to reverse what he states is a factual finding that the Respondent's solicitors sufficiently considered the availability of trade union funding, thereby discharging their obligation under Regulation 4(2)(d). He submits that there is no error of law, nor is it a finding to which no Judge could reasonably have come.

  19. The matter was listed for permission, with the appeal to follow if granted. It was, however, agreed between the parties that the matter should be fully argued, the question...

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